Westmoreland v. Wilgo Realty Corp.

• Decision Date: 22 July 1974
• Parties: Selice WESTMORELAND, etc., et al., Appellants, v. WILGO REALTY CORP., Respondent, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 165

358 N.Y.S.2d 165

45 A.D.2d 887

Selice WESTMORELAND, etc., et al., Appellants, v. WILGO REALTY CORP., Respondent, et al., Defendants.

Supreme Court, Appellate Division, Second Department.

July 22, 1974.

Before MARTUSCELLO, Acting P.J., and LATHAM, SHAPIRO, BENJAMIN and MUNDER, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries sustained by the infant plaintiff and for medical expenses, etc., of her coplaintiff mother, plaintiffs appeal from a judgment of the Supreme Court, Kings County, entered March 9, 1973, in favor of defendant Wilgo Realty Corp., upon the trial court's dismissal of the complaint at the end of the entire case at a jury trial.

Judgment reversed, on the law, and new trial granted, with costs to abide the event. The appeal did not present questions of fact.

This action was first tried in the Civil Court of the City of New York, New York County, where plaintiffs adduced proof that the infant plaintiff had fallen into an open basement-excavation area due to missing bars on a ramp which ran from respondent's premises to the public sidewalk. At the end of plaintiffs' case, the complaint was dismissed solely on the ground that the infant plaintiff had been a trespasser. The ensuing judgment was reversed by the Appellate Term, First Judicial Department (Westmoreland v. Wilgo Realty Corp., N.Y.L.J., Dec. 15, 1970, p. 2, cols. 4--6), and a new trial was ordered. The Appellate Term, citing Patterson v. Proctor Paint and Varnish Company, 21 N.Y.2d 447, 288 N.Y.S.2d 622, 235 N.E.2d 765, held (cols. 5--6): 'Evidence of the alleged dangerous condition, its close proximity to the sidewalk, its duration and the presence and activity of children in that area is present in the record. Hence, the questions of defendant's negligence and plaintiff's contributory negligence were questions of fact for the jury to determine.'

Thereafter, plaintiffs successfully moved to increase the Ad damnum and to remove the action to the Supreme Court, Kings County. During the first retrial in that court a mistrial was granted upon respondent's counsel's application. The latter argued that testimony concerning the defective ramp elicited from plaintiffs' witness was outside the pleadings since the bill of particulars only mentioned a 'defective fence * * * in front of the premises' and not a ramp. The Trial Justice granted plaintiffs an adjournment for the purpose of their making an application in Special Term to amend their bill of particulars to include a reference to a defective ramp, and fixed the return of the case to the trial calendar for a date two weeks after determination of such motion to amend. Due to some confusion as to the identity of respondent's attorney of record, such motion never came to fruition and the matter appeared on the Trial Term calendar a few days after the mistrial.

The second trial in the Supreme Court, Kings County, the one now under review, was held before a different Justice. Respondent's counsel again objected to any reference to a ramp because it was not mentioned in the pleadings, and further noted that there had been no compliance with the prior direction regarding a motion to amend. Plaintiffs then moved to amend their pleadings, but the Trial Justice denied the motion. Plaintiffs' counsel unsuccessfully argued that respondent could not be prejudiced in any way and that, therefore, under the principle of liberality of pleadings (CPLR 3026), the motion could be granted. The Trial Justice, indicating that he felt bound by the prior directive to plaintiffs to move to amend at Special Term, nevertheless allowed the infant plaintiff to proceed with her proof that the accient had occurred on an iron ramp over a basement area, instead of on the sidewalk in front of the building, subject, however, to respondent's right to later move to strike out such proof on the ground that it did not fall within the scope of the infant plaintiff's bill of particulars.

During the ensuing trial, plaintiffs...